jurisdictions and slavery as a standard of treatment

Evidence Requirements before 19th Century Anti-Slave TradeJurisdictions and Slavery as a Standard of Treatment

Michel Erpelding*

Introduction: Treatment as a key component of 19th century legal instrumentsfor the international suppression of the slave trade

The intensity of 19th century state practice relating to the suppression ofthe slave trade1 inevitably raises the question of how international law ac-tors defined this phenomenon. A cursory glance at declarations made bystate representatives and legal scholars of the period, seem to confirmHoward Hazen Wilson’s formalistic definition of the slave trade as:

[a] business of moving human chattels from a land where prisoners ofwar were slaves, to a land where slaves were res.2

For instance, in a memorandum addressed to the Quai d’Orsay in 1854,the French minister of the Navy, Théodore Ducos (1801-1855), defined theslave trade as:

[t]he buying and exportation of slaves intended for transportation tocolonies where slavery exists, and where they must become the proper-ty of settlers, with all the consequences which the right of ownershipentails.3

I.

* Senior Research Fellow at the Max Planck Institute Luxembourg for ProceduralLaw. A more detailed account of the issues examined in this chapter can be foundin: M. Erpelding, Le droit international antiesclavagiste des “nations civilisées”(1815-1945) (2017).

1 See in particular J. Allain, The Nineteenth Century Law of the Sea and the BritishAbolition of the Slave Trade, 58 BYIL (2007), 1, 342-388. Reprinted in: J. Allain,The Law and Slavery: Prohibiting Human Exploitation (2015), 46-100.

2 H. H. Wilson, Some principal aspects of British efforts to crush the African slavetrade, 1807-1929, 44 AJIL (1950), 1, 505-506.

3 “L’achat et l’exportation d’esclaves destinés à être transportés dans des colonies oùl’esclavage existe, où ils doivent devenir la propriété des colons, avec toutes lesconséquences du droit de possession”. Quoted by: C. Flory, De l’esclavage à la liber-té force: Histoire des travailleurs africains dans la Caraïbe française au XIXe siècle(2015), 46.

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In his Dictionnaire de droit international public et privé published in 1885,the Argentine publicist Carlos Calvo (1824-1906) gave an almost identicaldefinition.4 This formalistic view does not hold up to actual state practiceas derived from domestic legislation and international treaties. As a matterof fact, once it came to identifying and prosecuting individual cases ofslave trading, considerations based on the legal status of the trade’s victims– whether past, present, or future – were much less decisive than referencesto a concrete standard of treatment.

Definitions contained within domestic legislation outlawing the slavetrade were not, in fact, explicitly premised on the existence of slavery as alegal status. The British Slave Trade Act of 1807 defined the slave trade as:

[a]ll manner of dealing and trading in the purchase, sale, barter, trans-fer of Slaves, or of Persons intended to be sold, transferred, used, ordealt with as Slaves, practiced or carried on, in, at, to or from any partof the Coast of Countries of Africa.5

This definition, which was confirmed and further broadened by the subse-quent acts passed in 1811,6 1815,7 and 1824,8 includes a double referenceto a standard of treatment. First, it recognizes that it is not only possible topurchase, sell, barter, and transfer slaves (whose legal status was that ofchattels), but also persons that were legally free.9 Second, the 1807 defini-tion requires that persons purchased, sold, bartered, or transferred in sucha way must be “intended to be sold, transferred, used, or dealt with as

4 Evidently considering it a thing of the past, Calvo defined the slave trade as “thebuying and selling of negroes that used to take place on the coasts of Africa withthe purpose of transporting these negroes to the colonies or to a country in thenew world where slavery existed, and selling them there as slaves” (“l’achat et lavente des nègres qu’on faisait autrefois sur les côtes d’Afrique pour les transporteraux colonies ou dans les pays du nouveau monde où l’esclavage existait, et les y ven-dre comme esclaves”). C. Calvo, Dictionnaire de droit international public et privé,vol. 2 (1885), 265.

5 An Act for the Abolition of the Slave Trade (47 Geo. III, Sess. 1, cap. 36), s. 1.6 An Act for Rendering More Effectual an Act Made in the 47th Year of His Majesty’s

Reign, intituled ‘An Act for the Abolition of the Slave Trade’ (51 Geo. III, cap. 23),s. 1.

7 An Act to Provide for the Support of Captured Slaves during the Period of Adjudi-cation (55 Geo. III, cap. 172), s. 1.

8 Slave Trade Act 1824 (c.113, 5 Geo. IV), s. 2.9 It should be noted that section 1 of the abovementioned Slave Trade Act of 1811

characterized the victims of the slave trade as “any native or natives of Africa, heldand treated as slaves, or other person or persons held or treated as slaves”, supranote 6.

Michel Erpelding

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Slaves”. While the sale or transfer of a person “as a slave” might refer to theexistence of a legally recognized contract or deed, and, accordingly, implythe existence of slavery as a legal institution within the jurisdiction wherethe sale or transfer takes place, one does not see why this should necessarilybe the case where one person accomplishes the material acts of “using” or“dealing with” another person “as a slave”. Defining the slave trade as anoperation premised not so much on the transportation of human chattelsrather than on the deportation and treatment of individuals as if they werechattels, was hardly a British idiosyncrasy. Thus, despite her initial reluc-tance to give any precise definitions in its legislation, where the slave tradewas referred to as “la traite des noirs”, and its victims as “les noirs detraite”,10 France eventually resorted to a standard of treatment in order toallow its cruisers to free Christian prisoners of war who had been enslavedby Muslim rulers on the Barbary Coast, in Egypt, and in the Levant. Underan 1823 ordinance, French ship-owners and captains were forbidden fromusing and fitting out ships in order to transport slaves, “irrespective of theorigin of said slaves and the nation into whose hands they have fallen”(“quelles que soient l’origine desdits esclaves et la nation au pouvoir delaquelle ils sont tombés”), while French naval officers were instructed to ar-rest “any French ship on board of which passengers are treated as slaves”(“tout navire français à bord duquel des passagers traités comme esclaves setrouveroient”).11

Treaties for the suppression of the slave trade also included references tothe treatment of its victims, even if most of them did not provide any defi-nition of the slave trade. The Anglo-Dutch treaty of 1814 merely stated that“no Inhabitants of that Country [Guinea, i.e. West Africa] shall be sold orexported as Slaves”,12 whereas the Anglo-Portuguese treaty of 1817 bound

10 See in particular Ordonnance du roi qui pourvoit au cas où il serait contrevenuaux ordres de Sa Majesté concernant l’Abolition de la Traite des Noirs, 8 January1817, Bulletin des lois, ser. 7, vol. 4, 105; Loi qui prononce des Peines contre lesindividus qui se livreraient à la Traite des Noirs, 15 April 1818, Bulletin des lois,ser. 7, vol. 6, 234; Loi relative à la Répression de la Traite des Noirs, 25 April 1827,Bulletin des lois, ser. 8, vol. 6, 377; Loi concernant la Répression de la Traite desNoirs, 4 March 1831, Bulletin des lois, ser. 8, vol. 2, part 2, 35.

11 Ordonnance du Roi qui défend, sous les peines y exprimées, à tout armateur etcapitaine français d’employer et d’affréter les bâtiments qui leur appartiennent ouqu’ils commandent, à transporter des esclaves, 18 January 1823. Bulletin des lois,ser. 7, vol. 16, 18.

12 Convention relative to the Dutch Colonies, Trade with the East and West Indies,etc. (Great Britain, Netherlands), signed at London on 13 August 1814, 2 BFSP(1814-1815), 370, Article. 8.

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its parties to “ensure that their respective subjects do not engage in the il-licit traffic in slaves” (“de veiller mutuellement à ce que leurs sujets respec-tifs ne fassent pas le Commerce illicte d’Esclaves”).13 The Anglo-Spanishtreaty signed that very same year forbade Spanish subjects “to purchaseslaves, or to carry on the slave trade, on any part of the coast of Africa,North to the Equator”.14 Only three treaties, all of which were signed withstates that still recognized slavery as a legal institution, included an expressdefinition of the slave trade. The Anglo-Venezuelan treaty of 1839 and theAnglo-Ecuadorian treaty of 1841 noted that:

[f]or want of a proper explanation of the real spirit of the phrase ‘Traf-fic in Slaves’, [the parties to the treaty in question] do here mutually de-clare to be understood by such traffic, such only which is carried on innegroes brought from Africa, in order to transport them to other partsof the world for sale;

as opposed to purely internal transportation of slaves.15 In a similar spirit,the Anglo-Portuguese treaty of 1842 defined the slave trade as:

[t]he infamous and piratical practice of transporting the natives ofAfrica by sea, for the purpose of consigning them to slavery.16

Taken out of context, this definition could be read as a vindication of Mini-ster Ducos’ restrictive approach. However, Article. 5 of the same treatyadded that the prohibition of the slave trade did not question the right ofPortuguese subjects “to be accompanied, in voyages to and from the Por-tuguese possessions off the coast of Africa, by slaves who are bona fidehousehold servants”. In order to prevent abuses, the treaty provided a crite-ria allowing for an effective distinction between household slaves and vic-tims of the slave trade. In addition to a formal criterion (household slaveshad to be issued passports by the highest civil authority at the port of em-

13 Additional Convention for the prevention of the Slave Trade (Great Britain, Por-tugal), signed at London on 28 July 1817, 4 BFSP (1816-1817), 85, Article. 1. Edi-tor’s translation. The original Portuguese version also mentions the “commercioillicito de escravos”.

14 Treaty for the Abolition of the Slave Trade (Great Britain, Spain), signed atMadrid on 23 September 1817, 4 BFSP (1816-1817), 33, Article. 2.

15 Treaty for the Abolition of the Slave Trade (Great Britain, Venezuela), signed atCaracas on 15 March 1839, 27 BFSP (1838-1839), 669, Article. 1. Treaty for theAbolition of the Traffic in Slaves (Great Britain, Ecuador), signed at Quito on 24May 1841, 30 BFSP (1841-1842), 304, Article. 1.

16 Treaty for the Suppression of the Traffic in Slaves (Great Britain, Portugal), signedat Lisbon on 3 July 1842, 30 BFSP (1841-1842), 527, Article. 1er.

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barkation), it mostly relied on a standard of treatment: household slaveshad “to be found at large and unconfined in the vessel; and clothed likeEuropeans in similar circumstances”; moreover, there could be no otherslaves on board the vessel, nor could there be any equipment characteristicof a slave ship.17

References to this kind of equipment had become a key component ofthe law of evidence applicable before Mixed Commissions18 and domesticcourts19 assigned with the task of implementing treaties for the suppres-sion of the slave trade. They are further proof of the role treatment playedin the latter’s legal definition. From the 1820s onwards, it had become pos-sible to condemn ships as slavers despite the fact that no victims of thetrade had been found aboard. Courts could now rely on the mere presenceof signs showing that a vessel had been actually used, or merely equipped,for the purpose of confining hundreds of men and women under inhu-mane conditions, deporting them to foreign lands against their will, andsubjecting them to various abuses in order to ensure their submission. Asslavers were aware that the first treaties for the suppression of the slavetrade only allowed for the detention of ships actually having slaves onboard;20 they had often reacted to the presence of British cruisers byputting their slaves ashore, or, more alarmingly, by throwing them over-board. States adapted by agreeing on new rules of evidence in two stages.At first, courts were allowed to take into account the presence of slaves on

17 Ibid., Article. 5. A comparable although less detailed rule could already be foundin the Anglo-Portuguese treaty of 1815: Treaty for the restriction of the Por-tuguese Slave Trade and for the annulment of the Convention of Loan of 1809and Treaty of Alliance of 1810 (Great Britain, Portugal), signed at Vienna on 22January 1815, 2 BFSP (1814-1815), 348.

18 On these Mixed Commissions, or Mixed Courts, see in particular L. Bethell, TheMixed Commissions for the Suppression of the Transatlantic Slave Trade in theNineteenth Century, 7 Journal of African History (1966), 1, 79-93; J. Martinez,The Slave Trade and the Origins of International Human Rights Law (2012).

19 On a particularly important British court, see T. Helfman, The Court of Vice Ad-miralty at Sierra Leone and the Abolition of the West African Slave Trade, 115Yale Law Journal (2005-2006), 1, 1122-1156.

20 Thus, pursuant to Article.10 of the Anglo-Spanish treaty of 1817, “No British orSpanish Cruizer shall detain any Slave Ship not having Slaves actually on board;and in order to render lawful the detention of any Ship, whether British or Span-ish, the Slaves found on board such Vessel must have been brought there for theexpress purpose of the Traffic”. Article. 7 of the Anglo-Portuguese treaty of 1817and Article. 2 of the Anglo-Dutch treaty of 1818 contained similar rules.



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board a ship during a stage of its voyage preceding its capture.21 In prac-tice, this meant that, given the extreme conditions on board slave ships andthe catastrophic sanitary situation resulting thereof, the presence of a char-acteristic pestilential smell was deemed prima facie evidence of slave trad-ing.22 During the second phase, “equipment clauses” were added to slavetreaties:23 from now on, proving that a ship had been built or equipped forthe purpose of transporting, sequestrating, and feeding hundreds of cap-tives was sufficient to have it detained as a slaver.24

21 See the supplementary clauses signed by Spain on 10 December 1822: BFSP, vol.10 (1822-1823), 87. The Netherlands signed a similar instrument on 31 December1822, ibid., 554; Portugal did the same on 15 March 1823: 11 BFSP (1823-1824),23.

22 Bethell, supra note 18, 86.23 Equipment clauses can be found in almost all treaties for the repression of the

slave trade negotiated between Britain and other Western powers after 1823. TheNetherlands was the first country to agree to such a clause: Explanatory and Addi-tional Articles to the Treaty between Great Britain and the Netherlands, for thePrevention of the Traffic in Slaves (Great Britain, Netherlands), signed at Brusselson 31 December 1822 and 25 January 1823, 10 BFSP (1822-1823), 554.

24 For example, Article. 9 of the Anglo-Portuguese treaty of 1842 (supra note 16)contained the following equipment clause: “Any vessel, British or Portuguese,which shall be visited by virtue of the present Treaty, may lawfully be detained,and may be sent or brought before one of the Mixed Commissions established inpursuance of the provisions thereof, if any of the things hereinafter mentionedshall be found in her outfit or equipment, or shall be proved to have been onboard during the voyage in which the vessel was proceeding when captured,namely:

(1) Hatches with open gratings, instead of the close hatches which are usual inmerchant-vessels.(2) Divisions or bulk-heads, in the hold or on deck, in greater number thanare necessary for vessels engaged in lawful trade.(3) Spare plank fitted for being laid down as a second or slave-deck.(4) Shackles, bolts, or handcuffs.(5) A larger quantity of water, in casks or in tanks, than is requisite for theconsumption of the crew of the vessel, as a merchant- vessel.(6) An extraordinary number of water-casks, or of other vessels for holdingliquid, unless the master shall produce a certificate from the Custom House atthe place from which he cleared outwards, stating that sufficient security hadbeen given by the owners of such vessel, that such extra quantity of casks, orof other vessels, should only be used for the reception of palm oil, or for otherpurposes of lawful commerce.(7) A greater quantity of mess tubs or kids, than are requisite for the use of thecrew of the vessel, as a merchant-vessel.

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Treaties for the suppression of the slave trade were also based on thepremise that states had the obligation to guarantee the effective freedom ofthe slaves they had liberated. Almost all instruments for the repression ofthe slave trade concluded after 1817 included an express provision obligingstate parties to guarantee the freedom of any African found on board acondemned slave ship.25 It was usually added that liberated slaves wereplaced at the disposal of the government on whose territory adjudicationhad taken place, and that the government in question had the right to em-ploy them as servants or free labourers.26 Recruitment into the armedforces was also an option. Great Britain, for instance, enrolled almost

(8) A boiler, or other cooking apparatus, of an unusual size, and larger, or fit-ted for being made larger, than requisite for the use of the crew of the vessel,as a merchant-vessel; or more than one boiler, or other cooking apparatus, ofthe ordinary size.(9) An extraordinary quantity of rice, of the flour of Brazil manioc, or cassada,commonly called farinha, of maize, or of Indian corn, or of any other articleof food whatever, beyond what might probably be requisite for the use of thecrew; such rice, flour, maize, Indian corn, or other article of food, not beingentered on the manifest, as part of the cargo for trade.(10) A quantity of mats or matting, larger than is necessary for the use of thecrew of the vessel, as a merchant-vessel.

Any one or more of these several things, if proved to have been found on board,or to have been on board during the voyage on which the vessel was proceedingwhen captured, shall be considered as prima facie evidence of the actual employ-ment of the vessel in the transport of negroes or others for the purpose of con-signing them to slavery; and the vessel shall thereupon be condemned, and shallbe declared lawful prize, unless clear and incontestably satisfactory evidence, onthe part of the master or owners, shall establish to the satisfaction of the Court,that such vessel was, at the time of her detention or capture, employed on somelegal pursuit, and that such of the several things above enumerated, as were foundon board of her at the time of her detention, or had been on board of her on thevoyage on which she was proceeding when captured, were needed for legal pur-poses on that particular voyage”.

25 The only exception to this rule was the Anglo-French treaty of 1845: Conventionfor the Suppression of the Traffic in Slaves (Great-Britain, France), signed at Lon-don on 29 May 1845, 33 BFSP (1844-1845), 4.

26 This clause first appeared in Article. 7 of the Regulations for the Mixed Commis-sions annexed to the 1817 Anglo-Portuguese and Anglo-Spanish treaties, as well asin Article. 6 of the Anglo-Dutch treaty of 1818. Another example of it can befound in Article. 11 of the Anglo-French treaty of 1833 which was later joined bysix other countries. Supplementary Convention for the more effectual Suppres-sion of the Traffic in Slaves (Great Britain, France), signed at Paris on 22 March1833, 20 BFSP (1832-1833), 286.



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12,000 “recaptives” as soldiers or sailors between 1808 and 1840.27 It wasunderstood that the new vocations of the former slaves must not give riseto treatment characteristic of slavery. As this was often not the case, Britainpersuaded Spain, Portugal, and several Latin American states to agree toregulations fleshing out the meaning of the effective liberation clause.These regulations took two forms. A short version, comprising eight arti-cles, obliged its signatories to ensure the “permanent good treatment” ofliberated Africans, as well as their “full and complete emancipation” (after1839, this expression was replaced by “full and complete freedom”), addingthat this should be done “in conformity with the humane intentions of theHigh Contracting Parties”.28 The second collection of regulations can befound as annexes to the Anglo-Uruguayan treaty of 1839 and the Anglo-Portuguese treaty of 1842.29 Comprising 33 articles, they organized a tran-sitional regime during which the former slaves were to familiarize them-selves with salaried work, based on coercion and protection against abusescharacteristic of slavery.30

Whilst internal legislation and treaty provisions both implied that actsof slave trading could be proved by having recourse to a standard of treat-ment, ultimate proof of the existence of such a standard can be found inthe case law of international and domestic jurisdictions favouring treat-ment over legal status in order to condemn individual ships as slavetraders. As a matter of fact, several emblematic cases show that de jure con-siderations, such as the emancipated status of passengers (ii), or even thefact that slavery no longer existed in the country of destination (iii), didnot prevent judges from holding, based on a de facto standard of treatment,that acts of slave trading had been committed.

27 Flory, supra note 3, 32.28 Titled ‘Regulations for the good treatment of liberated negroes’, this kind of regu-

lation was introduced by Article 13 and Annexe C of the Anglo-Spanish treaty of1835. Such an Annex C was equally mentioned in Article 12 of the Anglo-Chileantreaty of 1839, in Article 11 of the Anglo-Argentinean treaty of 1839, in Article 12of the Anglo-Bolivean treaty of 1840, and Article 12 of the Anglo-Mexican andAnglo-Ecuadorean treaties of 1841.

29 See Annexe C of these treaties, titled ‘Regulations in respect of the treatment ofliberated negroes’.

30 Ibid.

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The preeminence of treatment over individual emancipation certificates

As the “Regulations for the good treatment of liberated negroes” had al-ready indicated, emancipated slaves, despite their status as free persons,were at a particular risk of remaining in practical slavery. Nineteenth-cen-tury antislavery courts acknowledged this risk; thus, in the Uniao case of1844, the Anglo-Portuguese Mixed Commission at the Cape used a stan-dard of treatment to hold that emancipated individuals treated as servantsand sailors were not slaves (A). In the 1840 case of the Sénégambie, Britishjudges in the Gambia and Sierra Leone had already decided that emanci-pated individuals deported overseas against their will could be consideredslaves (B).

Emancipated individuals treated as servants and sailors are not slaves: theUniao case (1844)

Decisions issued by Mixed Commissions for the repression of the slavetrade confirm that treatment was indeed a key factor for the purpose ofidentifying individual cases of trade in slaves.31 The case of the Uniao,judged on 4 November 1844 by the Anglo-Portuguese Mixed Commissionat the Cape, is particularly striking in this regard.32 On 29 July 1844, whileanchoring off Quelimane, in Mozambique, the Portuguese brig Uniao wascaptured by two Royal Navy sloops. Their commanders had decided to actafter making two observations. First, they had found various fittings onboard the Uniao which they deemed unusual for a ship engaged in legiti-mate trade, and rather evocative of the items listed by the 1842 Anglo-Por-tuguese treaty’s “equipment clause”.33 Second, during their inspection ofthe Uniao, the British naval officers had found “six negroes, supposed to beslaves”. Stating that they feared for their safety on board the Uniao, they had

II.

A.

31 The Foreign Office transferred the decisions issued by these Mixed Commissionsto the House of Commons which published them within the special series of itsBlue Books dedicated to the suppression of the slave trade. This series was laterreedited by the Irish University Press: British Parliamentary Papers – Slave Trade,Shannon, Irish University Press, 1968-1971 (hereafter BPP: Slave Trade). For thedecisions issued by Mixed Commission, see 9-51 BPP: Slave Trade (1823-1869).

32 For all essential documents relating to this case (correspondence, judgments, wit-ness statements, expert reports, etc.), see 29 BPP: Slave Trade (1846), Class A, No.260, 611-663.

33 Ibid., 618.



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been transferred to the HMS Bittern.34 However, once the alleged slaverhad been brought to the Cape for judgment by the local Anglo-PortugueseMixed Commission, the facts soon proved more complex than in the cap-tor’s version. The discussion of the facts by the parties shows that, in caseof doubt, the only efficient way to prove an act of slave trading was toprove the existence of a certain standard of treatment with regard to its al-leged victims. This applied both to the ship’s equipment and the conditionof the Africans found aboard.

Thus, a commission of survey appointed by the Mixed Commissionfound that most fittings described by the captors as “suspicious” (e.g. alarge main hatchway, additional partitions on a second deck, a fireplacelarger than necessary for the crew) were actually quite compatible withthose of a ship engaged in legitimate trade.35 The commission itself deter-mined that the ship’s cargo, which included large quantities of rice, was le-gitimate.36 The rice’s inferior quality had initially raised suspicions: onewitness had claimed that it was inedible for Europeans, and only fit to befed to slaves.37 This account was later challenged by other witnesses on twogrounds: first, this type of rice was apparently quite commonly exported toLondon, where it was used as soup-rice; second, rice found on slavers wasactually “rather more weevil-eaten” than the one found aboard the Uniao.38

Since neither the ship’s fittings nor its cargo were clearly indicative of anact of slave trading, the commission eventually concentrated on anotherpiece of equipment mentioned by Article 9 of the 1842 treaty, namely, thepresence of shackles, bolts, and handcuffs. Quite strikingly, the captor’sdeclaration did not list any of these items, only “several iron bars”.39 Even-tually though, once the ship had been brought to the Cape, various boltswere retrieved from it. One witness who had examined them at theQueen’s warehouse stated that they could have been used to confine sever-al men.40 Convinced that a close examination of these bolts would providedecisive proof of the Uniao’s true nature, the Mixed Commission had theequipment brought before them, and they were subjected to the scrutinyof a shipwright and a commission of survey. All eventually agreed that only

34 Ibid., 618-619.35 Ibid., 636-637.36 Ibid., 618.37 Ibid., 630.38 Ibid., 632-633.39 Ibid., 618.40 Ibid., 629-630.

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one bolt could have been used as a shackle.41 Now, as noted by one wit-ness, having an instrument “for the purpose of confining refractory peo-ple” was rather common for a merchant vessel at that time.42 Eventually,not even the attorney-general, speaking on behalf of the captors, was readyto declare that there had been slave shackles on board the Uniao.43 Accord-ingly, the Mixed Commission concluded that no slave-trading equipmentwithin the meaning the 1842 treaty had been found.44

Irrespective of its equipment, the Uniao could have been lawfully de-tained and judged had its captors proved that the Africans found aboardhad indeed become the victims of the slave trade. Here, too, unforeseendifficulties emerged. The first obstacle was the Africans’ legal status. Con-trary to their earlier declarations, the six Africans found aboard the Uniaowere no longer slaves, at least according to Portuguese domestic law. Oneof them, who went by the name of “Joze Mozambique”, was very likely afree man, and served as a personal attendant to one of the passengers.45 Asfor the five remaining Africans, they had been manumitted by the Uniao’scaptain shortly after entering his service as sailors. The correspondingdeeds of manumission, bearing the signature of a notary in Mozambique,had been given to the captors, who transferred them to the Mixed Com-mission.46 Furthermore, the five Africans in question were listed as crewmembers on the Uniao’s manifest.47 It should be noted that in the eyes ofthe Mixed Commission, authentic documentary proof of legal status underdomestic law was clearly not sufficient to dispel doubts about the Africans’possible status as traded slaves under the 1842 treaty. As mentioned earlier,this treaty defined the slave trade as:

[t]he infamous and piratical practice of transporting the natives ofAfrica by sea, for the purpose of consigning them to slavery.

41 Ibid., 616 and 636-637.42 Ibid., 633.43 Ibid., 617-618.44 Ibid., 618.45 Documents provided by the Mixed Commission give little information about

“Joze Mozambique”, apart from the fact that he was the only African who had em-barked on the Uniao of his own free will. It should also be noted that he was alsothe only African who refused to re-embark on the ship after its release. The com-missioners’ report adds that Joze Mozambique’s master “[offered] no oppositionto his leaving his service”, ibid., 613, 626.

46 Ibid., 622-623.47 Ibid., 619-620.



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This definition could very well apply to persons who, under domestic law,were not anymore, or not yet, considered as slaves. In the case of the Uniao,the captain’s attitude toward his African crew members was hardly irre-proachable. When called before the Mixed Commission, all of them testi-fied that they had boarded the Uniao against their will. All of them ap-peared to have been sold to the captain, including those who had statedthat they had been free men until then.48 However, for the attorney-generalbefore the Mixed Commission, legal status, rather than concrete treatment,seemed to be the key factor. In his view, the mere fact of embarking slavesalready constituted an act of slave trading:

With regard to the negroes, he observed, that one of them Sabino, hadnot been manumitted till a month after he was shipped, and that twoothers, named Izidoro and Joze Maria, had also been on board asslaves; whence he contended that the vessel had been employed in theSlave Trade within the meaning of the Treaty, the negro sailors beingall purchased, shipped, as they informed the captors, clearly againsttheir will, and made free on the voyage.49

The attorney-general’s formalistic reasoning was very likely not meant toprovide an authentic interpretation of the 1842 treaty, but rather to pro-duce an authoritative argument in order to secure the Uniao’s condemna-tion and the liberation of all Africans found aboard, irrespective ofwhether they had been manumitted before or after embarkation.50 TheMixed Commission rejected this approach, favouring reasoning more inline with the 1842 treaty’s references to a concrete standard of treatment.The identical questions submitted to the Africans found on the Uniao werequite telling in this regard. Apart from the circumstances of their embarka-tion, the following questions related to their subsequent treatment. Didthey consider themselves to be free men? Had they been informed of theirmanumission? What clothes did they wear? Were they subjected to physicalabuse? Did they receive remuneration for their work? And if so, howmuch? Did they want to re-embark on the ship? All of the Africans had an-

48 Two of the five sailors stated that they had embarked on the Uniao as free men,but that they had been ordered to do so by their “employer”. However, owing tothe circumstances described by them and other witnesses, it seems pretty straight-forward that they had, in fact, been sold to the ship’s captain, ibid., 625-626.

49 Ibid., 617.50 The attorney-general’s formalism appears even more specious with regard to his

earlier statement that “all [the Africans] were slaves, or recently so”, which clearlyimplied that their status under Portuguese law was not decisive in his eyes, ibid.

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swered that they considered themselves to be free men and felt treated assuch; that they wore normal clothes; that they had agreed on a salary al-though not all of them had yet been paid. As to physical abuse, their an-swers differed: two stated that they had been unfairly beaten; two othersdeclared they had suffered no bodily harm; a fifth declared that he had on-ly been punished for disciplinary offences, as any sailor would have been.Two of the men stated their desire to return on board; whilst the two whohad been subject to beatings said that they would prefer to remain at theCape. A fifth African remained hesitant.51 The statements were confirmedby a Portuguese passenger, who had reported that all of them had beentreated, fed and clad “in the same manner as the white sailors on board”.52

The commission inferred that the Africans of the Uniao had indeed beenemployed as sailors, and were not meant to be “consigned to slavery”. Thus,they had not been the victims of an act of slave trading. Upholding the ap-plicant’s claims, the commission ordered the ship and its cargo to be re-leased, and its owners to be compensated. All African sailors eventually re-embarked on the Uniao.53

While the Uniao case was decided mainly with regard to objective treat-ment factors such as clothing and food, an earlier case showed that thesubjective element of consent, or rather the lack thereof, could also be acriterion for determining that emancipated Africans were, in fact, treatedas slaves.

Emancipated individuals deported overseas against their will are slaves: theSénégambie case (1840)

Between France and Great Britain, the question of treatment of emancipat-ed slaves sparked a controversy that would last more than twenty years.France, lacking Britain’s naval strength, could not rely on similar numbersof “recaptives” to provide its colonies with labourers and soldiers. In the1820s, French authorities came up with an alternative solution: the govern-ment would buy captives from African chiefs, emancipate them, and de-port them to French colonies as indentured labourers. As France knew thather policy of “redemption” (“rachat”) was likely to contravene both her

B.

51 Ibid., 625-626.52 Ibid., 626-627. It should be noted that this assessment might however be question-

able, coming from Joze Mozambique’s master.53 Ibid., 613 and 618. The commissioners’ report does not provide any information

on their subsequent fate.



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own legislation for the suppression of the slave trade and the bilateraltreaties signed with Britain, she had taken a number of formal precautions.For instance, the French government would only act through foreign inter-mediaries, who were specifically asked not to transport the slaves boughtfrom African rulers by sea, instead only by land and on internal waters.More characteristically of France’s formalistic approach, the intermediarieswere ordered to draw up “provisional deeds of future liberation” (“acteprovisoire de libération à temps”) at the location of the exchange, in orderto clarify that the persons bought as slaves would not be resold nor re-en-slaved in the future.54 Despite these precautions, the dreaded diplomaticcrisis eventually materialized in 1840, with the capture of the Frenchschooner Sénégambie. Under a contract signed with the French authoritiesin Senegal, the owner of the Sénégambie had agreed to provide the colonywith “one hundred indentured Blacks intended to form a company of mili-tary pioneers at Cayenne” (“cent Noirs, engagés à temps, destinés à formerà Cayenne une Compagnie de Pionniers militaires”). In turn, the Frenchauthorities had agreed to provide a warship as an escort to the Sénégambiefrom the location where the Africans had been bought to the place wherethey were to be disembarked. Before they were to disembark, a govern-ment official was to draw up deeds of manumission.55 After enteringGorée with a first shipment of Africans bought in Bissau, the Sénégambieembarked on a second voyage. Having called at the port of Bathurst, themain British colony in the Gambia, she was seized by a British cruiser as aslave trader.56 The owner of the Sénégambie was brought before a grand ju-ry at Bathurst and indicted for slave trading.57 The ship and its crew weretransferred to Freetown, and tried by the local British courts.58 The Vice-Admiralty Court at Freetown decided to condemn the Sénégambie as a ship

54 Flory, supra note 3, 39-40.55 Marché pour le rachat de cent Noirs destinés pour Cayenne, 21 October 1839, 20

BPP: Slave Trade (1841), Class C, 6-7.56 Messrs. Forster and Smith to Viscount Palmerston, 9 May 1840, 20 BPP: Slave

Trade (1841), Class C, 1-2.57 Regina v. Marbeau, 13 February 1840, 20 BPP: Slave Trade (1841), Class C, 19. Af-

ter he was formally indicted before the local Court of Session, Marbeau chose toignore the summons issued by the British authorities in the Gambia. He left thecolony and resumed executing his contract with the French government. Flory,supra note 3, 39-40.

58 The French authorities tried to challenge the British courts’ jurisdiction by invok-ing the Anglo-French treaties of 1831 and 1833 which declared that slave shipsshould be judged by the flag state. M. Dagorme to Lieutenant-Governor Ingram,14 February 1840, 20 BPP: Slave Trade (1841), Class C, 13-14. The British govern-

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fitted for the slave trade.59 As for the crew, they were handed one-monthprison sentences by the local Court of Session.60 The discussions before allthree courts essentially focused on the treatment given to the “redeemed”slaves. In order to distinguish the latter from victims of the slave trade, theFrench authorities had ordered their contractor to provide the indenturedAfricans with a certain standard of treatment. As a result he was prohibitedfrom chaining them up,61 and legally bound to provide them with Euro-pean-style clothes and the native soldier’s food ration.62 In their state-ments, several of the accused stressed that the “redeemed” Africans, not be-ing in chains, had been free to move about the ship.63 The court atBathurst expressly rebutted this argument. Not only did the French policyof “redemption” openly run counter to the letter of British domestic legis-lation, which outlawed any act of buying slaves, even with the intention offreeing them; it was also manifest that it was ultimately based on coercion.For the court, this was apparent in two ways. In a more general sense,French authorities had made no mention of the captives’ prior consent totheir serving as indentured labourers at Cayenne. More specifically, withregard to the Africans’ treatment on board the ship, the court noted thatthe French navy had provided the Sénégambie with a code of signals thatincluded a flag to be hoisted in the event of a passenger revolt. In thejudges’ opinion, this treatment was impossible to distinguish from that in-flicted on victims of the slave trade, as they concluded that “Such compul-sory employment of persons bought at a price for the purposes of labour[constituted], to the best of our judgment, an act of slavery”.64

ment rebutted this argument, since the 1831 and 1833 treaties did not questionthe signatories’ competence to seize and judge slavers found within their respec-tive internal waters. “Acting Lieutenant-Governor Ingram to Governor Dagorme”,17 February 1840, ibid., 15.

59 Vice Admiralty Court of Sierra Leone, 4 March 1840, 20 BPP: Slave Trade (1841),Class C, 31-32.

60 Memorandum containing an abstract of the communication from the ColonialDepartment on the case of the French schooner ‘Sénégambie’, 10 June 1840, 20BPP: Slave Trade (1841), Class C, 39.

61 Flory, supra note 3, 41.62 Supra note 55.63 See in particular the witness statement by Sénégal, the captain of the Sénégambie.

When asked by the court how the redeemed slaves were treated on board his ship,he declared that they “were not ironed or handcuffed when they came on board,or in any way treated as slaves; they had as much liberty on board as he”. TheQueen v. Marbeau, 10 February 1840, 20 BPP: Slave Trade (1841), Class C, 17.

64 Regina v. Marbeau, 13 February 1840, 20 BPP: Slave Trade (1841), Class C, 19.



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The Foreign Office endorsed this analysis. In a letter addressed toFrench Prime Minister Adolphe Thiers, the British ambassador to Francestressed that the main reason why France and Great Britain were fightingthe slave trade was that

[i]t is an unjustifiable cruelty to seize the natives of Africa, and to carrythem away by force from their own country to other parts of theworld, in order there to make them perform labour and engage in oc-cupations not of their own choice.65

Therefore, hiring “redeemed” slaves against their will was nothing but an-other form of the slave trade, since

[t]hese negroes do not enlist, of their own accord, into the French ser-vice, but are handed over to the French Authorities by force; they areto be kept down by force during the voyage, and instead of being freeagents, when they arrive at the end of their voyage, they are then to becompelled by force to labour. The condition, therefore, of these ne-groes, notwithstanding the pretended certificate of emancipation, is inall respects that of slavery.66

None of the July Monarchy’s successive governments endorsed Britain’sviews on the forcible deportation of “redeemed” slaves: although theysomewhat reduced the amount of slaves that were purchased and subse-quently freed by France (especially in the vicinity of British colonies), theypersistently refused to assimilate “redemption” to the slave trade.67 France’sposition would only change with the advent of the second French Repub-lic in 1848, when France’s leading abolitionist politician, Victor Schœlcher(1804-1893), became Under-Secretary of the Navy. Schœlcher not only de-clared that slave “redemption” was counterproductive as it encouraged theslave trade within Africa, but also that it was tantamount to a temporaryform of slavery.68 As a result, the abolitionist decree of 27 April 1848, au-thored by Schœlcher, abolished both colonial chattel slavery and “the sys-tem of temporary indentures established in Senegal” (“le système d’engage-ment à temps établi au Sénégal”).69

65 Lord Granville to M. Thiers, 16 June 1840, 20 BPP: Slave Trade (1841), Class C,19.

66 Ibid.67 Flory, supra note 3, 43-45.68 Ibid., 44.69 Décret relatif à l’abolition de l’Esclavage dans les Colonies et Possessions

françaises, 27 April 1848, Bulletin des lois, ser. 10, vol. 1, p. 321, Article 2.

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However, as subsequent French governments refused to enforce the abo-lition of slave “redemption”,70 anti-slavery courts were soon confrontedwith the question of determining whether a state whose domestic law nolonger recognized slavery as a legal institution could nevertheless be foundin violation of international treaties against the slave trade.

The preeminence of treatment over legal abolition

One might have expected that mutual accusations of trading in slaves be-tween European nations would have ceased after most of them had erasedthe institution of slavery from their domestic legislations. As a matter offact, in as early as 1839 the Anglo-Portuguese Mixed Commission at Free-town had briefly raised this question in an obiter dictum without providingan answer.71 Subsequent international practice would show that an aboli-tionist country could very well be accused of trading in slaves. Indeed, ac-cusations of slave trading made during two prominent cases involvingFrench ships would eventually persuade France to replace her practice offorcibly recruiting African labourers for deportation overseas,72 by a policy

III.

70 Even the Second French Republic (1848-1852) put an entire end to the policy ofimmigration by “redemption”. The Second French Empire (1852-1870) resumedthis policy on a massive scale after 1857, before negotiating treaties with GreatBritain for the immigration of Indian coolies in 1860 and in 1861. Flory, supranote 3, 44-45, 59-81.

71 In December 1838, the Portuguese schooner Aurelia Feliz was captured by theRoyal Navy as a slaver because it carried a young boy bought on the island of Bo-lama, in present-day Guinea-Bissau, which was at that time disputed betweenGreat Britain and Portugal. The Mixed Commission at Freetown, before releasingthe ship on the ground that the young slave was employed on board as a cabin-boy, and had therefore not been shipped “for the purposes of the traffic”, notedthat it was “unnecessary to enter upon the questions, whether the Island of Bula-ma [sic] be British or Portuguese territory, or whether we can presume the possi-bility of any person existing in a state of slavery whilst under the nominal protec-tion of British law”. Report of the case of the Portuguese Schooner Aurelia Feliz,Manoel de Jesus Silva, Master, 14 February 1839, 18 BPP – Slave Trade (1840),Class A, 98-99 (emphasis added).

72 Based on a decree of 1852, the French system for the recruitment of Africanlabourers theoretically ensured that government officials verify the consent of theindentured African emigrants and their humane treatment on board the shipsthat carried them to the Americas. France, Décret sur l’émigration d’Europe ethors d’Europe à destination des Colonies françaises, 27 March 1852, Bulletin deslois, ser. 10, vol. 9, 1018, in particular Article 8. In practice, the emigrants’ consentwas often doubtful, since they were either “redeemed” slaves or had been encour-



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of voluntary Asian immigration regulated in such a way as to ensure thehumane treatment of the workers concerned.73 Although these cases didnot result in trials, they saw the use of evidence similar to that of the Uniaoand Sénégambie cases (A). In 1872-1875, Japan used the Maria Luz case toshow that the international legal notion of slavery could also be used forthe suppression of practices relating to the exploitation of indenturedworkers that were not Africans (B).

Even an abolitionist state can be found guilty of treating people as slaves: theRegina Cœli and Charles-et-Georges cases (1857-1858)

The first case that attracted international attention to the French labour re-cruitment system in Africa was that of the Regina Cœli.74 In April 1858, theFrench consul at Monrovia had requested the assistance of his British ho-mologue in order to recapture the Regina Cœli, a French ship whose pas-sengers, all of which were “emigrants” recruited on the coast of Liberia,had revolted against the crew, slaughtering almost everyone. The missionwas entrusted to a captain of the British mail steamer Ethiope, who ensuredthe peaceful surrender of the “pirates”.75 The British authorities soon dis-covered the reasons behind the revolt: most of the 170 passengers had beenbought as slaves; only a minority had embarked of their own free will aslabourers bound for the French colony of Réunion; all of them, “re-deemed” slaves and free labourers alike, had been put into chains immedi-ately after embarking (their wrists and ankles still bore the marks of thistreatment).76 Once it had been towed back to Monrovia, the Regina Cœliwas handed over to a Liberian Admiralty Court for adjudication of its sal-vage.77 Rather than risking a discussion of the circumstances of the cap-ture, France decided to put an end to the procedure by having one of itswarships illegally secure the vessel. Liberia’s president solemnly protestedthis unilateral action, adding that the French ship had been guilty of trad-

A.

aged to board the emigration ships under false pretenses. As for the conditions onboard these ships, they resulted in a mortality rate almost as high as that observedduring the final years of the legal slave trade. Flory, supra note 3, 151-214, 241.

73 Ibid., 68-103.74 For the facts at hand and the parties’ arguments, see 49 BFSP (1858-1859),

1011-1014, 1019-1024.75 Consul Campbell to the Earl of Malmesbury, 30 April 1858. Ibid,. 1022-1024.76 Mr. Croft to Consul Newnham, 15 April 1858, ibid., 1011-1014.77 Mr. Moore to Consul Newnham, undated, ibid., 1022.

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ing in slaves.78 Several months earlier, the French Minister of Foreign Af-fairs, who was aware that his country might face this kind of accusation,had already denied all British accounts of Africans having been put inchains and mistreated on board the Regina Cœli.79

From December 1857 to October 1858, a second case, that of theCharles-et-Georges, almost resulted in a war between France and Portugal.80

The facts at hand closely resembled those of the Regina Cœli case. TheCharles-et-Georges had received written instructions by French authoritiesto sail to Mozambique, where she was to embark African indentured work-ers bound for the island of Réunion. The Portuguese authorities inMozambique had marked their disapproval of this venture. The Charles-et-Georges moved off the colony, but subsequently re-appeared at anotherpoint of the coast, where it embarked 110 Africans. The Portuguese gover-nor-general, who had expected such a move, had the ship seized and ap-pointed a commission to investigate the circumstances which had givenrise to the capture.81 In its report, the commission not only addressed theship’s equipment, which it held to be that of a slave ship, but also the con-dition of the Africans found aboard it. While it recognized that none of theAfricans had been found imprisoned, it immediately added that “this wasowing to the greater part being old men and children”. All declared thatthey had been sold and forced to embark against their will. As an addi-tional formal criterion, it was also noted that the captain had not been ableto present passports or labour contracts for his passengers. From thesefacts, the commission concluded that the Charles-et-Georges had been in vi-olation of the Portuguese decree of 10 December 1836 against the slavetrade.82 The Governor-general decided to transfer the case to the localcourt which confirmed the commission’s report and condemned the vesseland her captain, while the remaining crew members were released, togeth-er with the French government official found aboard the ship.83 TheFrench government was infuriated by this decision, even though the Por-

78 Message of the President of Liberia, on the Opening of the Legislature, 9 Decem-ber 1858, ibid., 81-82.

79 Earl Cowley to the Earl of Malmesbury, 22 June 1858, ibid., 1040.80 For a rather complete account of the case, see, 49 BFSP (1858-1859), 599-697.81 Mr. Howard to the Earl of Clarendon, 17 February 1858, ibid., 600-602.82 Report of the Commission appointed by the Governor-general of Mozambique to

investigate the circumstances under which the French barque Charles-et-Georgeswas captured on the coast of Quitangonha by the Portuguese man-of-war Zambe-si, 1 December 1857, ibid., 617-619.

83 Sentence, 8 March 1858, ibid., 630-632.



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tuguese had made it clear that the French official was not to blame in anyway. For France, condemning a ship with a French state agent on board asa slaver was all the more intolerable as it implied that an abolitionist gov-ernment could in fact be accused of slavery.84 When the owners of theCharles-et-Georges appealed the decision of the Mozambique court beforethe Court of Relaçao in Lisbon,85 France demanded the ship’s immediaterelease,86 and backed up its demand by sending a naval squadron into theTagus estuary.87 Confronted with the threat of having their capital subject-ed to naval bombardment, the Portuguese government eventually gave in,handing over the vessel and her captain to the French authorities.88 Thecase of the Charles-et-Georges sparked considerable unease amongst otherEuropean governments89 and international law scholars such as PaulPradier-Fodéré (1827-1904).90 Napoleon III himself concluded from it thatthe forced recruitment of Africans, which was impossible to distinguish

84 In a note of 14 September 1858 addressed to the Portuguese prime minister, theFrench ambassador stressed that the Charles-et-Georges had operated with the as-sent of the French government and under the supervision of a French governmentagent. As this “[excluded] the very possibility of accusing, or even suspecting, [theship of having committed an act of] slave trading, the Government of the Emper-or [could] not tolerate that the Charles-et-Georges be considered a slaver andjudged accordingly”. (“[C]es actes incontestables émanés d’une autorité française[excluaient] jusqu’à la possibilité d’une accusation ou même d’un soupçon detraite, le Gouvernement de l’Empereur n’admet pas que le Charles-et-Georges aitput être considéré et jugé comme négrier”). The Marquis de Lisle to the Marquisde Loulé, 14 September 1858, ibid., 627.

85 Mr. Howard to the Earl of Malmesbury, 16 August 1858, ibid., 610.86 Earl Cowley to the Earl of Malmesbury, 2 October 1858, ibid., 624.87 Mr. Howard to the Earl of Malmesbury, 4 October 1858, ibid., 642.88 Extract from the Diario do Governo, 25 October 1858, ibid., 682-684.89 As noted by H. F. Howard, the British ambassador to Portugal, “the conduct pur-

sued by the French Government in sending a squadron here to intimidate the Por-tuguese Government, before even the answer of the latter had been taken intoconsideration, is very generally blamed by the foreign diplomatists here, andmore particularly by the Representatives of the weaker Powers”. Mr. Howard tothe Earl of Malmesbury, 8 October 1858, ibid., 656.

90 Pradier-Fodéré, who authored the 19th century’s most comprehensive French-lan-guage manual of international law, deplored that the question whether theCharles-et-Georges was indeed a slaver (which, in his eyes, was a perfectly legiti-mate one) had not been “resolved according to principles, but […] settled byforce, as is all too often the case when a weak state is in conflict with a powerfulstate” (“résolue d’après les principes, mais […] tranchée par la force, comme celan’a lieu que trop souvent, lorsqu’un État faible se trouve en conflit avec un Étatfort”). P. Pradier-Fodéré, Droit international public européen et américain, vol. 5(1891), 1065-1067.

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from the slave trade, and, therefore, “[contrary] to progress, humanity, andcivilization”, should be replaced by “free Indian coolie labour”.91 Less thanthree years later, France abandoned her policy of “redemption” by signinga treaty with Britain allowing her to recruit Indian contractual workers92

for all of her colonies.93

91 In a letter to his cousin Prince Jérôme, Louis-Napoléon Bonaparte explained hispolicy change as follows: “I demanded that Portugal restitute the Charles-et-Georges, because I will always maintain the integrity of the national flag. In re-gard to this matter, only my deep conviction that I was in my right could per-suade me to jeopardize the friendly relations I gladly maintain with the King ofPortugal. However, as regards the principle of indenturing blacks, my mind ishardly made up. If, indeed, workers are recruited against their will on the shoresof Africa, if this recruitment is nothing but a form of slave trade in disguise, I willnot have it, not at any price. For most certainly I shall nowhere encourage anyventure contrary to progress, to humanity, to civilization. I therefore urge you toseek out the truth, using the same zeal and intelligence you apply to all mattersyou deal with. And since the best way of putting an end to these continual causesof conflict would be to replace black labour with free Indian coolie labour, I askyou to come to an understanding with the Ministry of Foreign Affairs in order toresume negotiations with the British government [to that end]”. (“J’ai réclaméénergiquement auprès du Portugal la restitution du Charles-et-Georges, parce queje maintiendrai toujours intacte l’indépendance du drapeau national; et il m’a fal-lu dans cette circonstance, la conviction profonde de mon bon droit pour risquerde rompre avec le Roi du Portugal les relations amicales que je me plais à entrete-nir avec lui. Mais, quant au principe de l’engagement des noirs, mes idées sontloin d’être fixées. Si, en effet, des travailleurs recrutés sur la côte d’Afrique n’ontpas leur libre arbitre, et si cet enrôlement n’est autre chose qu’une Traite déguisée,je n’en veux à aucun prix. Car ce n’est pas moi qui protégerai nulle part des entre-prises contraires au progrès, à l’humanité, et à la civilisation. Je vous prie donc derechercher la vérité avec le zèle et l’intelligence que vous apportez à toutes les af-faires dont vous vous occupez; et comme la meilleure manière de mettre un termeà des causes continuelles de conflit serait de substituer le travail libre des cooliesde l’Inde à celui des nègres, je vous invite à vous entendre avec le Ministre des Af-faires Étrangères, pour reprendre, avec le Gouvernement Anglais, les négociations[en ce sens]”). “The Emperor to his Imperial Highness the Prince in charge of theMinistry of Algeria and the Colonies“, 30 October 1858, Le Moniteur universel dusoir, 8 November 1858.

92 Convention relative to the Emigration of Labourers from India to the FrenchColonies (France, Great Britain), signed at Paris on 1 July 1861, 51 BFSP(1860-1861), 35. The treaty was followed by a unilateral declaration in whichNapoleon III, abandoning his former reference to the consent of workers infavour of a purely formalistic criterion, underscored that France’s former policy of“redeeming” slaves had not been, in fact, tantamount to trading in slaves: “Itshould be recognized that his form of recruitment is entirely different from theslave trade; as a matter of fact, whereas the [slave trade] originated and resulted in



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However, replacing African migrant workers with Asians did not put anend to the question of whether some of these non-European workers weresubjected to a treatment prohibited under international legal rules againstthe slave trade.

Toward freedom from slavery as a universal human right: the Maria Luz case(1872-1875)

The Anglo-French convention of 1861, with her detailed regulations onworkers’ consent,94 conditions of transportation,95 and working condi-tions,96 did everything to ensure that Indian coolies would not be subject-

B.

slavery, [slave “redemption”], on the contrary, leads to freedom. The negro slave,once he becomes an indentured labourer, is free, and not bound by any obliga-tions save those contained within his contract.However, doubts have been raised about the consequences that these indenturesmight have upon the African populations. It was asked whether the price paid forredemption did not in fact encourage slavery. […] We must [now] find in India,in the French possessions of Africa, and in those lands where slavery is prohibited,all the free workers that we need.” (“Ce mode de recrutement, il faut le recon-naître, diffère complètement de la Traite; en effet, tandis que celle-ci avait pourorigine et pour but l'esclavage, celui-là, au contraire, conduit à la liberté. Le nègreesclave, une fois engagé comme travailleur, est libre, et n'est tenu à d'autres obliga-tions que celles qui résultent de son contrat. Toutefois, des doutes se sont élevésquant aux conséquences que ces engagements peuvent avoir sur les populationsAfricaines. On s'est demandé si le prix de rachat ne constituait pas une prime àl’esclavage. […] Nous devons [désormais] trouver dans l'Inde, dans les possessionsfrançaises de l'Afrique, et dans les contrées où l'esclavage est proscrit, tous les tra-vailleurs libres dont nous avons besoin”). “The Emperor of the French to the Mi-nister of Marine and of the Colonies”, 1 July 1861, ibid., 48.

93 One year before, the two powers had already signed a similar convention restrict-ed to workers bound for the island of Réunion: Convention relative to the Emi-gration of Labourers from India to the Colony of Réunion (France, GreatBritain), signed at Paris on 25 July 1860, 50 BFSP (1859-1860), 86.

94 Article 6 of the treaty bound the parties to ensure that the emigrant “that his en-gagement is voluntary, that he has a perfect knowledge of the nature of his con-tract, of the place of his destination, of the probable length of his voyage, and ofthe different advantages connected with his engagement”. Moreover, Article 9 li-mited the duration of the contracts to five years, supra note 92.

95 Pursuant to the treaty of 1861, emigrants were entitled to clothes and a doubleblanket in winter (Article 13), access to a “European surgeon” and an interpreter(Article 14). The size of their cabins was also regulated (Article 15). Ibid.

96 Thus, the working time was limited to nine hours and a half day over six days aweek (Article 10), ibid.

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ed to a treatment which international and domestic courts had identifiedas a characteristic of slavery. Other agreements relating to Asian migrantworkers contained comparable provisions.97 As early as the 1840s, the prac-tice of recruiting Asian workers on long-term indentures in order to shipthem off to the Mascarene Islands, Africa, and the Americas, had some-times been described as “coolie trade”.98 Scholars regularly raised thequestion whether it could degenerate into slavery.99 Elements of state prac-tice confirmed that the boundaries between slave labour and coolie labourmay be fleeting: thus, during the US Civil War, Congress had passed a billprohibiting the “coolie trade”,100 using the same wording the US Constitu-

97 Great Britain concluded another treaty for the regulated emigration of Indianworkers with the Netherlands: Convention relative to the emigration of labour-ers from India to the Dutch Colony of Surinam (Great Britain, Netherlands),signed at the Hague on 8 September 1870, 60 BFSP (1869-1870), 22. The end ofthe 1870s also saw the conclusion of conventions regulating the emigration ofChinese workers: Convention for regulating the emigration of Chinese subjectsto Cuba (China, Spain), signed at Peking on 6 December 1878, 69 BFSP(1877-1878), 362; Treaty for the Regulation of Chinese immigration into theUnited States (China, United States), signed at Peking on 17 November 1880, 71BFSP (1879-1880), 103. Hawaii also concluded two conventions guaranteeingthe individual freedom and good treatment of immigrants from Japan and Por-tuguese colonies: Convention for regulating, temporarily, commercial relationsand emigration (Hawaii, Portugal), signed at Lisbon on 5 May 1882, 73 BFSP(1881-1882), 561; Convention respecting Emigration (Hawaii, Japan), signed àTokyo on 28 January 1886, 77 BFSP (1885-1886), 941.

98 See in particular F. M. Farley, The Chinese Coolie Trade 1845-1875, 3 Journal ofAsian and African Studies (1968), 1, 257-270, and H. Tinker, A New System ofSlavery: The Export of Indian Labour Overseas 1830-1920, 2nd ed. (1993).

99 In a first phase, critics of the “coolie trade” focused on recruitment and trans-portation conditions. At the end of the 19th century, it was the coolies’ labourconditions that persuaded prominent figures like Victor Schœlcher and PaulLeroy-Beaulieu (1843-1916) to brand it as a form of slavery. J. Weber, L’émigra-tion indienne à la Réunion: ‘contraire à la morale’ ou ‘utile à l’humanité’?(1829-1860), in E. Maestri (ed.), Esclavage et abolitions dans l’océan Indien(1723-1860) (2006), 327-328.

100 Act to Prohibit the ‘Coolie Trade’ by American Citizens in American Vessels, 18February 1862, 68 BFSP (1876-1877), 441-443. Pursuant to this Act, “no citizenor citizens of the United States, or foreigner coming into or residing within thesame, shall for himself or for any other person whatsoever, either as master, fac-tor, owner, or otherwise, build, equip, load, or otherwise prepare any ship or ves-sel, or any steam-ship or steam-vessel, registered, enrolled, or licensed, in theUnited States, or any port within the same, for the purpose of procuring fromChina, or from any port or place therein, or from any other port or place, the



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tion had used to refer to slaves.101 The realization that the use of Asian mi-grant labour might lead to new forms of slavery called for a reform of theinternational legal vocabulary against slavery, which since the 1815 ViennaDeclaration had been largely focused on the suppression of the “trade inAfrican negroes” (“la traite des nègres d’Afrique”).102 In 1879, the Germanlegal scholar Carl Gareis (1844-1923) took up this challenge by sketchingout a broader theoretical framework for international antislavery law.103

For Gareis, the transatlantic slave trade and the worst forms of coolie tradewere both particular manifestations of the slave trade (Sklavenhandel), aterm which he suggested be replaced by the more universalist “trade in hu-man beings” (Menschenhandel).104 Although Gareis himself believed thathis conception of slavery did not entirely correspond to 19th century posi-tive international law,105 the outcome of a recent dispute between Japanand Peru proved that his views were, on the contrary, validated by elementsof state practice.

On 10 July 1872,106 the Peruvian bark Maria Luz, while engaged in thetransportation of Chinese coolies from the Portuguese colony of Macao toPeru, had pulled into the port of Yokohama under stress of weather.107 Af-ter one of the coolies had jumped overboard and sought refuge on aBritish warship, the British chargé d’affaires decided to make an unofficialinquiry into conditions on board the Maria Luz. Having found that thecoolies were showing signs of ill-treatment, he requested the Japanese au-

inhabitants or subjects of China, known as ‘coolies’, to be transported to any for-eign country, port, or place whatever, to be disposed of, or sold, or transferred,for any term of years or for any time whatever, as servants or apprentices, or tobe held to service or labour” (emphasis added).

101 United States, Constitution, signed at Philadelphia on 17 September 1787, Arti-cle IV, Sect. 2, paragraph 3: “No person held to service or labour in one state,under the laws thereof, escaping into another, shall, in consequence of any lawor regulation therein, be discharged from such service or labour, but shall be de-livered up on claim of the party to whom such service or labour may be due”(emphasis added).

102 Déclaration des Puissances sur l’abolition de la traite des Nègres (Austria, Spain,France, Great Britain, Portugal, Prussia, Russia, Sweden-Norway), signed at Vien-na on 8 February 1815, 3 BFSP (1815-1816), 971-972.

103 C. Gareis, Das heutige Völkerrecht und der Menschenhandel (1879).104 Ibid., 5-8.105 Ibid., 26-34.106 In the Sabansho, before his Excellency Oye Tak, Governor, this day, 18 Septem-

ber 1872, Foreign Relations of the United States (hereafter FRUS), 1873-1874,vol. 1, 544.

107 Mr. Watson to Soyeshima Tane-omi, 3 August 1872, ibid., 529.

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thorities to detain the ship and interrogate the crew.108 The request wasgranted, and the Chinese passengers were brought ashore.109 Since they didnot want to return on board, and the Japanese authorities refused to forcethem back, the ship’s captain sued them individually for breach of contractbefore a local judge at Kanagawa.110

As in earlier proceedings dealing with African indentured labourers, dis-cussions before the Kanagawa court largely focused on the passengers’treatment, including their informed consent to their contracts, rather thansimply acknowledging their status as free individuals under Peruvian law(Peru had formally abolished slavery in 1854111). The claimant’s versionwas, in substance, that the Chinese had embarked by their own free willafter signing valid contracts whose terms they had fully understood.112

Their accommodation and food were allegedly better than those of thecrew.113 All had been happy before entering Japanese waters; none hadbeen flogged or chained up, except those guilty of disciplinary offences.114

These declarations contrasted with those made by the coolies them-selves,115 a Chinese doctor,116 and the British chargé d’affaires.117 Even theclaimant’s account contained enough contradictions to make it seem

108 Ibid., 530.109 Mr. De Long to Mr. Fish, 3 September 1872, ibid., 524-525.110 For a copy of the court proceedings and judgment in the matter of Heriero vs.

Chinese (sic): supra note 106, 533-553.111 Peru, Decreto de la Abolición de la Esclavitud, 3 December 1854, available at

http://www.ensayistas.org/antologia/XIXE/castelar/esclavitud/peru.htm (lastvisited on 29 September 2018).

112 Supra note 106, 535-536.113 Ibid., 539.114 Ibid., 535.115 Several of the coolies mentioned that food was insufficient and that they had

been beaten. In addition, “Coolie No. 8” said that the captain had ordered himto beat “Coolie No. 5” with a stick, and that he had been “forced to sign [hisown indenture] by a foreigner”. “Translation from Japanese minutes of visit toship, return, and report of Hayoshi Gontenji and Geo. Hill”, 15 August 1872,FRUS, 1873-1874, vol. 1, 594-595.

116 The doctor, Chum Ping Him, stated that those who had revolted against the cap-tain had been “beaten very hard with rattans, and then with a bull’s hide”. Gener-ally, he thought that the coolies “would be better off in their villages than on theship, as they would be free and not confined”, supra note 106, 542-543.

117 During his short visit aboard the Maria Luz, the British chargé d’affaires inJapan, R. G. Watson, had “found many of the coolies debilitated, emaciated, andsuffering, and all apparently in a very melancholy and unhappy condition”. Hetook measurements of their space, and found it to be too small. He also “ob-served marks about the legs of the men and scrofulous marks”, ibid., 543-544.



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rather dubious. Thus, the captain recognized that he had embarked twelveboys, taken from their parents in exchange for money. He added that hehad done this in his personal capacity, since the charter-party disapprovedof this practice.118 He also confessed that those flogged and chained hadbeen punished either for secretly selling tea to the other passengers (whichcalled into question his earlier declaration that passengers had permanentaccess to tea),119 or for conspiring twice to “make a revolution on board”.120

Worse still, several members of the crew recognized that three passengershad committed suicide by jumping overboard and that others had collect-ed straw to set fire to the ship.121 In its judgment, the court at Kanagawadismissed the captain’s claim. Its essential holding was that the long-termindentures signed by the coolies of the Maria Luz had effectively reducedthem, “[s]ubstantially”, to the “practical status” of “slavery”, as they could beassigned from one employer to another against their will, and had beenleft ignorant of the law that would govern their indentures (as had thecourt). Thus, enforcing these contracts – which, in any case, had been ren-dered void by the abuse later inflicted upon the coolies – would have beencontrary to Japanese public policy.122

Peru, infuriated by this decision, sent a plenipotentiary to Japan, en-trusting him with the mission to obtain reparations before establishing for-mal treaty relations between both countries.123 According to the Peruvianminister, the Kanagawa court had lacked impartiality in assessing thecoolies’ condition: far from being a new form of the slave trade, the “so-called coolie trade” was in fact “nothing else but the free and spontaneousemigration of a very small part of the exuberant population of the celestialempire, which is frequently subject to the horrors of hunger, wars, andpestilence, unavoidable among so an immense an accumulation of people”.Their attempts to escape from the ship had merely been caused by “theennui which life on board always causes to those who are not accustomedto it”. In any case, the passengers of the Maria Luz were no slaves, as “slaves[could] not exist” in abolitionist Peru.124 The Japanese Minister of ForeignAffairs gave a biting reply to these arguments. He clarified that his govern-

118 Ibid., 537.119 Ibid., 536-537.120 Ibid., 537.121 Ibid., 539-542.122 Ibid., 548-552.123 Mr. De Long to Mr. Fish, 9 March 1873, FRUS, 1873-1874, vol. 1, 572-582.124 Minister of Peru to Minister of Foreign Affairs, 31 March 1873, FRUS,

1873-1874, vol. 1, 586-594.

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ment’s inquiry into the situation on board the Maria Luz had been trig-gered by “the beating, maiming, and imprisonment of persons whom tothe last hour, Captain Heriera designated as passengers”. Quoting extensive-ly from the accounts made by individual coolies (whom he referred to bytheir names, rather than assigning them a number), he concluded that “[i]twas unmistakably shown that [they] were dissatisfied with their treatment,and alarmed about the prospects for their future”. He reminded the Peru-vian minister that they had been preparing “to sacrifice their lives by set-ting fire to their ship at sea”, hardly a usual occupation for “free passengers”plagued by ennui. In any case, for Japan, it was out of the question to “drivethem outside of the protection to which they were entitled […] by the lawsof humanity […]”.125

Japan and Peru eventually agreed to refer the matter to the arbitration ofthe Russian Czar, who ruled in favour of Japan.126 Although the arbitratordid not specify the reasons for his decision, prominent legal scholars of theperiod acknowledged the award as an important legal development, espe-cially with regard to the notion of public policy in private internationallaw.127 In my view, the Maria Luz case should also be seen as an early at-tempt to extend the international fight against slavery and the slave trade;so as to encompass the worst forms of unfree labour, even those practicedby states that no longer recognized slavery as a legal institution, and, irre-spective of the origins of its victims. As a matter of fact, in his 1883 interna-tional law manual, the presumed author of the Russian award of 1875, Fy-odor Martens (1845-1909),128 gave a very broad definition of slavery in in-ternational law. In his view, slavery was first and foremost a question relat-ing to “human rights” (droits de l’homme), because “[all] civilized statesagree that man is a person” (“[tous] les États civilisés s’accordent sur cepoint que l’homme est une personne”), endowed with “imprescriptiblerights [which states] must respect in their relations with each other” (“desdroits imprescriptibles [que les États] doivent respecter dans leurs relations

125 Mr. De Long to Mr. Fish, 19 June 1873, FRUS, 1873-1874, vol. 1, 607-616.126 For the two protocols signed by the parties on 19 and 25 June 1873, as well as

the award of the Russian Czar, given on 17 (29) May 1873: H. La Fontaine, Pasi-crisie internationale (1902), no. LIX, 197-199.

127 See in particular L. Strisower, Affaire des navires Creole et autres: note doctri-nale, in A. La Pradelle, N. Politis (eds.), Recueil des Arbitrages Internationaux,vol. 1 (1905), 706. Several manuals also mentioned the case: A. Rivier, Principesdu droit des gens, vol. 1 (1896), 150-151. H. Bonfils, P. Fauchille, Manuel dedroit international public (1914), 667.

128 C. G. Roelofsen, International Arbitration and Courts, in B. Fassbender, A. Pe-ters, The Oxford Handbook of the History of International Law (2012), 163-164.



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réciproques”).129 Thus, fighting slavery did not merely mean to abolish itas a legal status, but to guarantee “the absolute respect of the human per-son” (“le respect absolu de la personne humaine”), which had now becomethe “guiding principle for European nations in their external relations” (“leprincipe dirigeant des nations européennes dans leurs relationsextérieures”).130 However, it would take Western states another 65 years toformally recognize this principle, by proclaiming the international humanright to freedom from slavery.131

129 F. de Martens, Traité de droit international (1883), 428.130 Ibid., 430.131 Pursuant to Article 4 of the Universal Declaration of Human Rights, ‘No one

shall be held in slavery or servitude; slavery and the slave trade shall be prohibit-ed in all their forms.’ Universal Declaration of Human Rights, proclaimed by theUnited Nations General Assembly on 10 December 1948, A/RES/3/217A.

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